Affordable Care Act Supreme Court Hearings this week

[detbuch]

Originally Posted by Jim in CT

The constitution is a list of enumerated powers. It specifically lists powers granted to the federal government, and it specifically says that everything else is left to the states.

I agree with you about what the Constitution says. But what judges say is often different than what the Constitution says. There is a famous "footnote" in the history of U.S. Constitutional jurisprudence. Footnote 4 written by Justice Harlan Stone for the 1938 U.S. vs Carolene Products which was used later to allow government to legislate against "unenumerated rights" of the People and for the non-enumerated powers of government so that Federal Government regulations would be reviewed on a "rational basis scrutiny." If government could show an even remotely rational basis for the legislation, regardless of any factual presentation or lack thereof, it would be upheld.

Having these types of things mandated by the feds might be more consistent and fair. However, the constitution doesn't say that it can be ignored to promote fairness or consistency.

You're right, the Costitution doesn't say so, but judges that have been educated in modern law schools are steeped in a progressive view of "instrumentalist" interpretation. That is, the Court is not simply a referee of Constitutional rules, but judicial decisions should be instrumental in achieving certain social goals or by treating all legal doctrines as instruments or means of serving the social objective that the judge deams appropriate. Several theories are used as a basis for such interpretation such as "realism," "monumentalism,"cognitive jurisprudence,"rule according to higher law," and "universal principal of fairness."

Johnny D is exactly correct, the analogy of auto insurance is a terrible analogy, because no one is forced to drive a car, and many peopl are not impacted by auto insurance requirements because they don't drive (lots of folks in big cities don't drive, and thus can avoid buying auto insurance without penalty). Obamacare requires every single human being to enter into a contract with a private company. Nothing like that has ever been proposed, I don't think. That it hasn't been proposed doesn't mean it's unconstututional, that's why we have the Supreme Court.

Actually, several people have been exempted from the mandate. But, when you argue with a progressive, you do so with someone who views "fairness," "equality," and equitable distribution of pain and gain through a centralized authority above any Constitutional consideration. When you point out that legislation may be unconstitutional, you will either get no response, or be led into a discussion of fairness, equity, or some contrived model of economic advantage. And usually, if not always, the instrument or means to achieve the goal is the Federal Government, which begs the question--are States necessary or are they (as well as the Constitution) an obstacle to good, efficient government?